National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
We, the NMFS, have completed a comprehensive status review of the Hawaiian insular false killer whale (
Comments on this proposal must be received by February 15, 2011. A public hearing will be held on Oahu, Hawaii, on Thursday, January 20, 2011, 6:30 p.m. to 9 p.m., at the McCoy Pavilion at Ala Moana Park, 1201 Ala Moana Blvd., Honolulu, HI 96814. NMFS will consider requests for additional public hearings if any person so requests by January 31, 2011. Notice of the location and time of any such additional hearing will be published in the
You may submit comments identified by 0648–XT37 by any one of the following methods:
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Krista Graham, NMFS, Pacific Islands Regional Office, 808–944–2238; Lance Smith, NMFS, Pacific Islands Regional Office, 808–944–2258; or Dwayne Meadows, NMFS, Office of Protected Resources, 301–713–1401.
On October 1, 2009, we received a petition from the NRDC requesting that we list the insular population of Hawaiian false killer whales as an endangered species under the ESA and designate critical habitat concurrent with listing. According to the draft 2010 Stock Assessment Report (SAR) (Carretta
The ESA defines “species” to include subspecies or a DPS of any vertebrate species which interbreeds when mature (16 U.S.C. 1532(16)). The U.S. Fish and Wildlife Service (FWS) and NMFS have adopted a joint policy describing what
A population segment of a vertebrate species may be considered discrete if it satisfies either one of the following conditions: (1) “It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation”; or (2) “it is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D)” of the ESA.
If a population segment is found to be discrete under one or both of the above conditions, its biological and ecological significance to the taxon to which it belongs is evaluated. Considerations under the significance criterion may include, but are not limited to: (1) “Persistence of the discrete population segment in an ecological setting unusual or unique for the taxon; (2) evidence that the loss of the discrete population segment would result in a significant gap in the range of a taxon; (3) evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range; and (4) evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics.”
The ESA defines an “endangered species” as one that is in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as one that is likely to become an endangered species in the foreseeable future throughout all or a significant portion of its range (16 U.S.C. 1532 (6) and (20)). The statute requires us to determine whether any species is endangered or threatened because of any of the following factors: (1) The present or threatened destruction, modification, or curtailment of its habitat or range; (2) overexploitation for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) the inadequacy of existing regulatory mechanisms; or (5) other natural or manmade factors affecting its continued existence (16 U.S.C. 1533). We are to make this determination based solely on the best available scientific and commercial information after conducting a review of the status of the species and taking into account any efforts being made by states or foreign governments to protect the species.
When evaluating conservation efforts not yet implemented or implemented for only a short period of time to determine whether they are likely to negate the need to list the species, we use the criteria outlined in the joint NMFS and FWS Policy for Evaluating Conservation Efforts When Making Listing Decisions (PECE policy; 68 FR 15100).
To conduct the comprehensive status review of the Hawaiian insular population of the false killer whale, we formed a Biological Review Team (BRT) comprised of eight federal scientists from our Northwest, Southwest, Alaska, and Pacific Islands Fisheries Science Centers. We asked the BRT to review the best available scientific and commercial information to determine whether the Hawaiian insular false killer whale warrants delineation into a DPS, using the criteria in the joint DPS policy. We asked the BRT to then assess the level of extinction risk facing the species at the DPS level, describing its confidence that the DPS is at high risk, medium risk, or low risk of extinction. The BRT defined the level of risk based on thresholds that have been used to assess other marine mammal species, and consistent with the criteria used by the International Union for the Conservation of Nature (IUCN) Red List of Threatened Species (IUCN, 2001). In evaluating the extinction risk, we asked the BRT to describe the threats facing the species, according to the statutory factors listed under section 4(a)(1) of the ESA, and qualitatively assess the severity, geographic scope, and level of certainty of each threat (Oleson
In compiling the best available information, making a DPS determination, and evaluating the status of the DPS, the BRT considered a variety of scientific information from the literature, unpublished documents, and direct communications with researchers working on false killer whales, as well as technical information submitted to NMFS. The BRT formally reviewed all information not previously peer-reviewed, and only that information found to meet the standard of best available science was considered further. Analyses conducted by individual BRT members were subjected to independent peer review, as required by the Office of Management and Budget Peer Review and Bulletin and under the 1994 joint NMFS/FWS peer review policy for ESA activities (59 FR 34270), prior to incorporation into the status review report.
The BRT acknowledged that considerable levels of uncertainty are present for all aspects of the Hawaiian insular false killer whale's biology, abundance, trends in abundance, and threats. Such uncertainties are expected for an uncommon species that is primarily found in the open ocean where research is expensive and knowledge is consequently poor. The BRT decided to treat the uncertainty explicitly by defining where it exists and using a point system to weigh various plausible scenarios, taking into account all of the best available data on false killer whales, but also considering information on other similar toothed whales. The BRT's objectives in taking this approach were to make the process of arriving at conclusions detailed in the status review report as transparent as possible and to provide assurance that the BRT was basing its conclusions on a common understanding of the evidence. Details of this approach can be found in Appendix A of the status review report.
The report of the BRT deliberations (Oleson
The following section presents biology and life history information gathered from throughout the range of false killer whales. A later section focuses on information specific to the Hawaiian insular false killer whale.
The false killer whale,
False killer whales are found in all tropical and warm-temperate oceans, generally in deep offshore waters, but also in some shallower semi-enclosed seas and gulfs (e.g., Sea of Japan, Yellow Sea, Persian Gulf), and near oceanic islands (e.g., Hawaii, Johnston Atoll, Galapagos, Guadeloupe, Martinique) (Leatherwood
Although false killer whales are found globally, genetic, morphometric, and life history differences indicate there are distinct regional populations (Kitchener
False killer whales are long-lived social odontocetes. Much of what is known about their life history comes either from examination of dead animals originating from drive fisheries in Japan (Kasuya and Marsh, 1984; Kasuya, 1986) or strandings (Purves and Pilleri, 1978; Ferreira, 2008). The social system has been described as matrilineal (Ferreira, 2008). However, this is not consistent with two known characteristics of false killer whales: Males leave their natal group when they begin to become sexually mature; and research showing females within a single group have different haplotypes, indicating that even among females, groups are composed of more than near-relatives (Chivers
The only reported data on birth interval, 6.9 years between calves, is from Japan (Kasuya, 1986). However, annual pregnancy rates were reported for Japan as 11.4 percent and 2.2 percent for South Africa (Ferreira, 2008). A rough interbirth interval can be calculated by taking the inverse of the annual pregnancy rate, which yields intervals of 8.8 and 45 years for Japan and South Africa, respectively. A single stranding group where 1 out of 37 adult females was pregnant was the source of the South African data, which may not be a representative sample and could be insufficient to estimate pregnancy rates in that population.
Comparisons of the life history parameters inferred from the Japanese drive fishery samples and the South African stranding sample indicated that the whales in Japan attained a larger asymptotic body size and grew faster. Also, a suite of characteristics of the whales in Japan indicated a higher reproductive rate: The ratio of reproductive to post-reproductive females was higher and the pregnancy rate was higher than in South Africa. Possible reasons given by Ferreira (2008) for the apparently higher reproductive rate in Japan are: The Japan whales are exhibiting a density-dependent response to population reduction as a result of exploitation; the colder waters near Japan are more productive; or differences in food quality. The estimated reproductive rates in both Japan and South Africa are low compared to those of other delphinids and especially to the two species with the most similar life history: Short-finned pilot whales (
Little is known about the breeding behavior of false killer whales in the wild, but some information is available from false killer whales held in oceanaria (Brown
Reproductive senescence is quite rare in cetaceans but has been documented in false killer whales and other social odontocetes. The two primary reasons given for reproductive senescence are increasing survival of offspring as a result of care given by multiple females of multiple generations (grandmothering), and transmission of learning across generations allowing survival in lean periods by remembering alternative feeding areas or strategies (McAuliffe and Whitehead, 2005; Ferreira, 2008).
Wade and Reeves (2010) argue that odontocetes have delayed recovery as compared to mysticetes when numbers are reduced because of the combination of their life history, which results in exceptionally low maximum population growth rates, and the potential for social disruption. Particularly if older females are lost, it may take decades to rebuild the knowledge required to achieve maximum population growth rates.
False killer whales are top predators, eating primarily fish and squid, but also occasionally taking marine mammals (see references in Oleson
Limited information is available on the diving behavior of false killer whales. Maximum dive depth was estimated at 500 m (Cummings and Fish, 1971). Time depth recorders have been deployed on four false killer whales (R. Baird, pers. comm., Cascadia Research Collective) totaling approximately 44 hours. The deepest dive recorded during a 22-hour deployment was estimated to have been as deep as 700 m (estimate based on duration past the recorder's 234 m limit and ascent and descent rates). However, only 7 dives were to depths greater than 150 m, all of them accomplished in the daytime. Nighttime dives were all shallow (30–40 m maximum), but relatively lengthy (approximately 6–7 minutes).
Indirect evidence of dive depths by false killer whales can be inferred from prey. Mahimahi has been noted as a prominent prey item (Baird, 2009). Based on the catch rates of longlines instrumented with depth sensors and capture timers (Boggs, 1992) in the daytime, mahimahi are caught closer to the surface than other longline-caught fish, primarily in the upper 100 m. Other prey species, such as bigeye tuna, typically occur much deeper, from the surface down to at least 400 m (Boggs, 1992). The deepest dives by the instrumented false killer whales approach the daytime swimming depth limit of swordfish (
There is quite a bit of variance in estimates of group size of false killer whales. At least some of the variability stems from estimation methods and time spent making the group size estimate. Most group sizes estimated from boats or planes vary from 1 to over 50 animals with an average from 20 to 30, and group size estimates increase with encounter duration up to 2 hours (Baird
The boundaries of Hawaiian insular false killer whale distribution have been assessed using ship and aerial survey sightings and location data from satellite-linked telemetry tags. Satellite telemetry location data from seven groups of individuals tagged off the islands of Hawaii and Oahu indicate that the whales move widely and quickly among the main Hawaiian Islands and use waters up to at least 112 km offshore (Baird
The greatest offshore movements occurred on the leeward sides of the islands, although on average, similar water depths and habitat were utilized on both the windward and leeward sides of all islands (Baird
A genetically distinct population of pelagic false killer whales occurs off Hawaii (Chivers
There is no information available to assess whether the life history of Hawaiian insular false killer whales differs markedly from other false killer whale populations. However, there is also no evidence to show they are similar. As discussed earlier, false killer whales in Japan were larger and had a higher reproductive output than those in South Africa, and these differences were attributed to one or more of the following: colder more productive waters, response to exploitation, and different food in the two regions (Ferreira, 2008). It remains uncertain whether Hawaiian insular false killer whales are more like those from Japan or those from South Africa.
Molecular genetic results support the separation of Hawaiian insular false killer whales from the more broadly distributed Hawaiian pelagic false killer whales (Chivers
The social cohesion of insular false killer whales is likely important to maintaining high fecundity and survival as it is in other highly social animals. Although some aspects of the behavior and “culture” of Hawaiian insular false killer whales have been investigated or discussed, the mechanisms by which they might influence population growth rates are not well understood. The situation of this population could be analogous to those of other populations of large mammals in which females live well beyond their reproductive life spans (
Historical population size is unknown. BRT members used density estimates from other areas together with the range inferred from telemetry data (
There are several important caveats. Even though Palmyra has a density that is high relative to other areas, it is unlikely that this represented a pristine population during the 2005 survey on which the estimate is based. Given the depredation tendencies of false killer whales, known long-lining in the Palmyra area, and the fact that false killer whales are known to become seriously injured or die as a result of interactions with longlines, the possibility that current densities are lower than historical densities cannot be discounted. Although Palmyra is situated in more productive waters than the Hawaiian Islands, we do not understand enough about the feeding ecology, behavior, and social system(s) of false killer whales to know how or whether productivity might be related to animal density for false killer whales. This caveat is true for all other areas where population density estimates exist for false killer whales. Therefore, we used and view data from Palmyra as a conservative estimate of pristine density.
The draft 2010 SAR for Hawaiian insular false killer whales (Carretta
Although the absolute abundance of Hawaiian insular false killer whales is small, the core-area (within 40 km) population density (0.12 animals/100 km
Aerial survey sightings since 1989 suggest that the Hawaiian insular false killer whale population has declined over the last 2 decades. A survey was conducted in June and July 1989 on the leeward sides of Hawaii, Lanai, and Oahu to determine the minimum population size of false killer whales in Hawaiian waters. False killer whales were observed on 14 occasions with 3 large groups (group sizes of 470, 460, and 380) reported close to shore off the Island of Hawaii on 3 different days (Reeves
With respect to trends in group size, the average group size during the 1989 survey (195 animals) is larger than the typical average group size for the insular population (25 animals for encounters longer than 2 hours) during more recent surveys (Baird
Five additional systematic aerial surveys were conducted between 1993 and 2003 covering both windward and leeward sides of all of the main Hawaiian Islands, including channels between the islands, out to a maximum distance of about 46 km from shore (Mobley
It is possible that weather or other survey conditions are at least partially responsible for the decline in sighting rates from 1993 through 2003; however, there was no downward trend in the sighting rates for the four most commonly seen species of small cetaceans (spinner dolphin (
A number of additional lines of evidence, summarized in Baird (2009), support a recent decline in Hawaiian insular false killer whale population size. Individual researchers in Hawaii have noted a marked decline in encounter rates since the 1980s and the relative encounter rate of false killer whales during the 1989 aerial survey was much higher than current encounter rates.
Chivers
Three stratifications of the mtDNA data examined genetic differentiation at different spatial scales (Chivers
All but one Hawaiian insular false killer whale had one of two closely related haplotypes that have not been found elsewhere. The presence of two distinct, closely related haplotypes in Hawaiian insular false killer whales is consistent with Hawaiian insular false killer whales having little gene flow from other areas. This pattern differs from those of Hawaiian stocks of bottlenose, spinner, and spotted dolphins that all have evidence suggesting multiple successful immigration events. The pattern of primarily closely related haplotypes shown in Hawaiian insular false killer whales is consistent with a strong social system or strong habitat specialization that makes survival of immigrants or their offspring unlikely. One single individual, a male, was found in among Hawaiian insular false killer whales with a different haplotype. Although there is no photograph of that male to connect it directly to Hawaiian insular false killer whales, it was sampled within a group with such strong connections that assignment tests could not exclude that it belongs to the insular group. Given the low power of the current assignment test (with few microsatellite markers), the possibility of immigration (permanent membership with Hawaiian insular false killer whales but with an origin outside the group) cannot be ruled out. Likewise, the possibility that this individual was a temporary visitor (
The mtDNA data also show strong differentiation between Hawaiian insular false killer whales (n = 81) and both broad-scale strata (central North Pacific (n = 13) and eastern North Pacific (n = 39)) and fine-scale strata (Hawaiian pelagic (n = 9), Mexico (n = 19), Panama (n = 15), and American Samoa (n = 6)). Genetic divergence between the Hawaiian insular false killer whales and other strata examined showed magnitudes of differentiation that were all consistent with less than one migrant per generation. No significant differences were found among the main Hawaiian Islands with sufficient data for statistical analysis (Hawaii, Oahu, and Maui).
Nuclear DNA results also showed highly significant differentiation among
The aforementioned uncertainties will best be resolved with additional sampling of nearby pelagic waters. Although the sample distribution is improved since the 2007 analysis, it remains poor in pelagic areas. The only full-scale cetacean survey of Hawaiian pelagic waters resulted in only two sightings of false killer whales in four months of effort, and the weather was too poor to obtain any high-quality identification photographs or biopsies (J. Barlow, pers. comm., NMFS SWFSC). Fisheries observers are trained to obtain identification photographs and biopsy samples; however, conditions during disentanglement usually result in photographs difficult to identify due to darkness, and prevent successful biopsy.
The strongest data with which to evaluate population structure are the mtDNA data. Approximately half of the population of Hawaiian insular false killer whales has been sampled, and all but one individual has one of two closely related haplotypes that have not been found elsewhere.
Chivers
The microsatellite data were also used to estimate the effective population size of Hawaiian insular false killer whales as 46 (95 percent CI = 32–69). Because this population may have recently declined and the animals are long-lived, many of those individuals still alive likely were born prior to the decline. Thus, the estimate of effective population size is likely too high. Nevertheless, domestic animals have been shown to start displaying deleterious genetic effects (lethal or semi-lethal traits) when effective population size reaches about 50 individuals (Franklin, 1980). While negative genetic effects cannot be predicted for a group of individuals that are probably naturally uncommon with a strong social structure that limits genetic diversity, the current low effective population size is a concern.
We have determined that Hawaiian insular false killer whales are discrete from other false killer whales based on genetic discontinuity and behavioral factors (the uniqueness of their behavior related to habitat use patterns). We have also determined that Hawaiian insular false killer whales are significant to the taxon, based on their unique ecological setting, marked genetic characteristic differences, and cultural factors.
Both mitochondrial DNA (mtDNA) and nuclear DNA (nDNA) provide support for genetic discontinuity. As explained in the Population Structure section of this proposed rule, genetic differentiation was examined at different spatial scales. The mtDNA data show strong differentiation between Hawaiian insular false killer whales and other false killer whale groups at both broad-scale strata (central North Pacific and eastern North Pacific) and fine-scale strata (Hawaiian pelagic, Mexico, Panama, and American Samoa). The strongest DNA data come from mtDNA. The Hawaiian insular false killer whales have approximately half of the population sampled, and all but one individual has one of the two closely related haplotypes that have not been found elsewhere. The BRT concluded that this pattern alone argues for a strong possibility of a high degree of separation. Nuclear DNA (microsatellite) data are also consistent with little gene flow between Hawaiian insular false killer whales and other false killer whales and support discreteness. Nuclear DNA results showed highly significant differentiation among the Hawaiian insular, North Pacific, eastern North Pacific, Hawaiian pelagic, Mexico, Panama, and American Samoa strata.
Hawaiian insular false killer whales are behaviorally unique because they are the only population of the species known to have movements restricted to the vicinity of an oceanic island group. This behavioral separation is supported by their linkage through a tight social network, without any linkages to animals outside of the Hawaiian Islands. Phylogeographic analysis also indicates an isolated population with nearly exclusive haplotypes, and telemetry data show that all 20 satellite-linked telemetry tagged Hawaiian insular false killer whales remained within the main Hawaiian Islands (Baird
Hawaiian insular false killer whales are significant to the taxon based on persistence in a unique ecological setting, marked genetic characteristic differences, and cultural factors. Hawaiian insular false killer whales persist in an ecological setting unusual or unique from other false killer whale populations because they are found primarily in island-associated waters that are relatively shallow and productive compared to surrounding oligotrophic waters. The following lines of evidence supporting this unique ecological setting include: Utilization of prey associated with island habitat that may require specialized knowledge of locations and seasonal conditions that aggregate prey or make them more vulnerable to predation. In an insular habitat, such foraging grounds may occur more regularly or in more predictable locations than on the high seas. The contaminant levels found in insular animals also suggest that both insular false killer whales and their prey may be associated with the urban island environment. And despite their small population size, the density (animals per km
Hawaiian insular false killer whales differ markedly from other populations of the species in their genetic characteristics. Hawaiian insular false killer whales exhibit strong phylogeographic patterns that are consistent with local evolution of mitochondrial haplotypes. Eighty of 81 individuals had one of two closely related haplotypes found nowhere else. These haplotypes are a sequence of a non-coding portion of the mtDNA and as such do not provide direct evidence for selection. The BRT found that the magnitude of mtDNA differentiation is large enough to infer that time has been sufficient and gene flow has been low enough to allow adaptation to the local Hawaiian habitat. The BRT noted that geneticists use one effective migrant per generation as a rule of thumb for the level of gene flow below which adaptation to local habitat is likely. Comparisons using mtDNA of the Hawaiian insular animals to those in all other geographic strata indicate less than one migrant per generation.
Finally, culture, or knowledge passed through learning from one generation to the next, is likely to play an important role in the evolutionary potential of false killer whales. The insular population contributes to cultural diversity in the species, and this may provide the capacity for different amounts of cultural capabilities such as the ability of false killer whales to adapt to environmental change. Evidence in support of the significance of cultural diversity includes: Insular false killer whales may have unique knowledge of nearshore foraging areas and foraging tactics that are transmitted through learning. Learning is a common feature of other social odontocetes. False killer whales are highly social mammals with long interbirth intervals and reproductive senescence suggesting transfer of knowledge is important to successfully persist in this unique Hawaiian habitat. Learning to persist in this unique habitat, and knowing the intricacies of localized prey distribution and prey movements, may take many generations.
Overall, the combination of genetic and behavioral discreteness coupled with ecological, genetic, and cultural significance led us to conclude that Hawaiian insular false killer whales are a DPS. There was some uncertainty in the genetic discontinuity factor of the discreteness conclusion based primarily on the lack of information on the adjacent population of pelagic false killer whales off the coast of Hawaii, and due to gaps in genetic sampling to the west of Hawaii. However, the BRT did not find this lack of information sufficient to alter the significance finding for Hawaiian insular false killer whales. We agree with the BRT's conclusion that the Hawaiian insular population of the false killer whale is a DPS.
The BRT qualitatively assessed potential individual threats to Hawaiian insular false killer whales and organized its assessment of threats according to the five factors listed under ESA section 4(a)(1). They evaluated the potential role that each factor may have played in the decline of Hawaiian insular false killer whales and the degree to which each factor is likely to limit population growth in the foreseeable future. Within the five factors, specific threats were individually ranked by considering the severity, geographic scope, the level of certainty that insular false killer whales are affected, and overall current and future (60 years) risk imposed by that threat. Consideration of future threats was limited to 60 years duration as this corresponds roughly to the life span of a false killer whale and represents a biologically relevant time horizon for projecting current conditions into the future.
Section 4(a)(1) of the ESA and NMFS's implementing regulations (50 CFR 424) state that the agency must determine whether a species is endangered or threatened because of any one or a combination of the five factors described under the ESA Statutory Provisions. The BRT was not asked to determine whether the DPS was endangered or threatened; it was only asked to assess the risk of extinction and the impact of factors affecting the DPS. The following discussion briefly summarizes the BRT's findings regarding threats to the Hawaiian insular false killer whale DPS. More details, including how the BRT voted, can be found in the status review report (Oleson
The impacts of reduced total prey biomass and reduced prey size represent a medium risk for insular false killer whales. Although declines in prey biomass were more dramatic in the past when the insular false killer whale population may have been higher, the total prey abundance remains very low compared to the 1950s and 1960s as evidenced by catch-per-unit-effort (CPUE) data from Hawaii longline fisheries and biomass estimates from tuna stock assessments (Oleson
Competition with commercial fisheries is rated as a medium level of risk to current and future Hawaiian insular false killer whales. This risk exists because false killer whale prey includes many of the same species targeted by Hawaii's commercial fisheries, especially the fisheries for tuna, billfish, wahoo, and mahimahi.
Until 1980, distant-water longliners from Japan caught between 1,300 and 5,000 t of tuna and billfish annually within the U.S. EEZ around Hawaii (Yong and Wetherall, 1980). Since 1980 no foreign longline fishing has been legally conducted in this zone, but the U.S. Hawaii-based longline fisheries now harvest similar quantities of tuna and billfish in the EEZ. In terms of total hooks deployed by the U.S. domestic fisheries, the fisheries declined slightly in the 1960s and 1970s, and then began to grow again in the 1980s. Total hooks in the U.S. EEZ around the main Hawaiian Islands in the period of 1965 and 1977 were around 1.6 to 2.9 million hooks per year. As the domestic fisheries declined in the 1960s and 1970s, foreign fishing in the U.S. EEZ around the main Hawaiian Islands increased, and then ceased in 1980. Domestic longlining was revitalized in the 1980s based on new markets for fresh tuna and the introduction of new shallow-set swordfish fishing methods.
The present-day Hawaiian insular false killer whale population requires an estimated 1.3 to 1.8 million kg of prey per year (Oleson
The potential limiting factor of reduced food due to catch removals by recreational fisheries was rated lower than for troll, handline, shortline, and kaka line fisheries in the status review report (Oleson
The threat of the accumulation of natural or anthropogenic contaminants, such as exposure to persistent organic pollutants (POPs), heavy metals (
Many toxic chemical compounds and heavy metals degrade slowly in the environment and thus tend to biomagnify in marine ecosystems, especially in lipid-rich tissues of top-level predators (McFarland and Clarke, 1989). In marine mammals, exposure to high levels of POPs has been associated with immunosuppression (Ross
Independently the threat of bioaccumulation of chemicals is a cause for concern, but when coupled with the threat of reduced prey quantities or qualities also affected by the contaminants, the risk associated with exposure to lipophilic POPs may increase. Thus, animals that are nutritionally challenged could be at higher risk as a result of increased mobilization of these compounds to other organs where damage could result. It is suspected that body condition can influence POP burdens in the blubber of marine mammals even though the dynamics of blubber POPs during changes in physiological conditions of these animals are complex and poorly understood (Aguilar
With human population growth and increasing commercial development, there has been an increased demand for industrial chemicals, current-use pesticides, pharmaceuticals, and personal care products. Many of these chemicals of emerging concern (CECs) are used in high volumes in various applications and, as a result, are capable of entering marine environments via
Marine litter and debris has become an increasing problem in the oceans, with plastic debris being the most abundant (Derraik, 2002). Although marine litter has been identified by the BRT as a threat related to habitat, it could also be identified as a threat under disease as well as other manmade factors. For direct threats to false killer whales, ingestion of plastics can obstruct or damage the esophagus and the digestive or intestinal tracts, block gastric enzymatic secretions, and have other effects that could reduce an animal's ability to feed and ultimately its overall fitness (Derraik, 2002). Ingestion of chemical light sticks used on swordfish longlines in Hawaii may pose an additional risk of chemical contamination. There is one documented case of ingestion of a net fragment by a false killer whale on the British Columbia coast (R. Baird, pers. comm., Cascadia Research Collective). For threats related to disease, risks include exposure to environmental contaminants contained in plastic resins. For threats related to other manmade factors, risks linked to plastic debris include entanglement, and introduction of alien species (Derraik, 2002; Rios
Oil is made up of thousands of different chemicals and some of the most toxic of these petroleum-related compounds are the polycyclic aromatic hydrocarbons (PAHs). These compounds are prevalent in coastal waters, especially in urban embayments, and have been shown to alter normal physiological function in marine biota (Varanasi
As previously mentioned, this factor may have contributed to the historical decline of Hawaiian insular false killer whales with live-capture operations occurring prior to 1990. However, there are no current and/or future threats identified for this listing factor. Interactions with fisheries are discussed under Factor D (below).
Disease and predation play a role in the success of any population, but small populations in particular can be extremely susceptible as this threat can have a disproportionate effect on small populations. Anthropogenic influences can potentially increase the risk of exposure to these pressures by lowering animals' immune system defenses, which may have detrimental effects to the population as a whole and result in mortality and reduced reproductive potential. Disease-related impacts of individual threats, such as exposure to environmental contaminants, parasites, pathogens, and harmful algal blooms pose a medium threat to Hawaiian insular false killer whales.
Although little is known about the occurrence of parasites in Hawaiian insular false killer whales, Hawaiian monk seals from the main Hawaiian Islands were exposed to protozoan and coccidian parasites. Discharge of raw or partially treated sewage effluent and contaminated freshwater runoff into marine coastal waters can increase the risk of pathogen transmission to animals that reside in nearshore areas, such as Hawaiian insular false killer whales. Additionally, insular false killer whales may be at an increased risk for exposure to biotoxins produced during harmful algal blooms (HAB) potentially caused from eutrophication and rising ocean temperature. Several Hawaiian monk seals died in the late 1970s and these deaths were attributed to exposure to the marine biotoxins ciguatoxin and maitotoxin from a HAB. HABs appear to be increasing in frequency and geographical distribution worldwide and pose a future threat to Hawaiian insular false killer whales.
The threats from climate change are separated into two parts: In this section as it relates to an increase in disease vectors, and in Factor E as it relates to changes in sea level, ocean temperature, ocean pH, and expansion of low-productivity areas. Climate change poses a medium threat to Hawaiian insular false killer whales due to the possible increase in disease vectors. Increased water temperature could change the composition of microbial communities in the main Hawaiian Islands. This may create an environment that could support new microbes not usually found in the region, thus exposing Hawaiian insular false killer whales to novel pathogens.
As described previously, a high rate of fin disfigurements (Baird and Gorgone, 2005) and other observations suggest interactions between fisheries and Hawaiian insular false killer whales. The continued lack of reporting/observing of nearshore fisheries interactions with insular false killer whales is rated by the BRT as a medium level of current and future risk to Hawaiian insular false killer whales. The State of Hawaii does not monitor bycatch of marine mammals in any of its state fisheries. The federally-managed Hawaii-based shallow-set longline fishery maintains approximately 100 percent observer coverage, and the federally-managed Hawaii-based deep-set longline fishery maintains approximately 20 percent observer coverage. Troll, handline, pole-and-line,
In addition to what the BRT identified as an inadequate regulatory mechanism as described above, we considered whether any other regulatory mechanisms directly or indirectly address what are deemed as the highest threats to the insular DPS: Small population size, and hooking, entanglement, or intentional harm by fishermen. Small population size is considered a high risk threat because of reduced genetic diversity, inbreeding depression, and other Allee effects, but these are inherent biological characteristics of the current population that cannot be altered by existing regulatory mechanisms. No legal protection is in place, nor could one be implemented, to reduce the threats of small population size.
Regarding addressing the high threat of hooking and entanglement, a regulatory mechanism exists to partially address this threat from commercial longline fisheries. The longline prohibited area around the main Hawaiian Islands was implemented in 1992 through Amendment 5 to the Western Pacific Pelagic Fisheries Management Plan to alleviate gear conflicts between longline fishermen versus handline and troll fishermen, charter boat operators, and recreational fishermen. Although characterized as a “25–75 nm” longline exclusion boundary, the boundary was not set at a precise distance from shore and in fact varies from 42.4 nm (78.6 km) to 104.4 nm (193.4 km) from shore from February through September (median distance 61.1 nm, 113.1 km). For the remaining four months of the year (October through January) approximately two-thirds (66.3 percent) of the boundary contracts towards the islands, such that the boundary ranges from 24.3 nm (45.1 km) to 104 nm from shore (median distance 48.7 nmi, 90.2 km) (Baird, 2009).
Longline fishing has thus been effectively excluded from the insular DPS's entire core range (<40 km). This prohibited area thus indirectly benefits insular false killer whales by decreasing the amount of longline fishing in insular false killer whale habitat. However, the decline of the insular DPS has occurred mostly since then, in spite of the prohibited area. In addition, and discussed further in the Protective Efforts section, the prohibited area is being proposed for complete closure to longline fishing out to the current February–September boundary, year-round. If implemented, this would exclude longline fishing from most of the geographic range of the insular stock as it is defined in the draft 2010 SAR, including most of the pelagic/insular stock overlap zone (Carretta
In summary, following a review of the best available information, the greatest threats to the species are still insufficiently addressed. This is either because the efforts can't or don't address all of the threats, or because enforcement of regulatory mechanisms is limited. Protective efforts from regulatory mechanisms, such as the MMPA, Clean Water Act, etc., are discussed in a later section. However, given the size of the U.S. EEZ surrounding the main Hawaiian Islands, adequate enforcement of laws in such a vast area is difficult. Therefore, we find that existing regulations are inadequate to protect the species from further declines throughout all of its range, and thus the inadequacy of existing regulatory mechanisms is itself a high threat to the Hawaiian insular false killer whale.
Climate change poses a medium threat to Hawaiian insular false killer whales and could be manifested in many ways, including changes in sea level, ocean temperature, ocean pH, and expansion of low-productivity areas (
Climate change related ocean acidification could alter the productivity and composition of the main Hawaiian Island ecosystem. Increases in low-productivity areas (
Interactions with commercial longline fisheries was rated as a high level of current and/or future risk to Hawaiian insular false killer whales. The BRT concluded that the intense and increased fishing activity within the known range of insular false killer whales since the 1970s suggests a high risk of fisheries interactions, even though the extent of interactions with almost all of the fisheries is unquantified or unknown. The only fisheries occurring within the range of the insular DPS for which there are recent quantitative estimates of hooking
Beginning in 1994, onboard observers in Hawaii-based longline fisheries have systematically recorded information on interactions with protected species, including marine mammals. Observer coverage initially was about 4 percent for all longline effort combined, but increased beginning in 1999. Since 2004, observer coverage has been 100 percent for shallow-set trips and 20 percent for deep-set trips. Both fisheries operate on the high seas and within the U.S. EEZ. False killer whales have been the most frequently hooked or entangled cetacean, primarily during tuna-targeting longline sets (Forney and Kobayashi, 2007; McCracken and Forney, 2010). Average mortality and serious injury, based on 31 observed interactions between 1994 and 2008, has been about 13 (CV = 0.37) false killer whales per year (calculated from estimates in Forney and Kobayashi, 2007; McCracken and Forney, 2010). Eleven additional false killer whales were observed injured or killed during 2009 throughout the range of the fisheries.
Most of the observed interactions with false killer whales in the Hawaii-based longline fisheries occurred more than 140 km from the Hawaiian Islands, beyond the known range of insular false killer whales; however, a few interactions occurred closer to the Hawaiian Islands and may have involved insular animals. Following a review of insular false killer whale movements and other factors, the 2004 through 2008 takes have been prorated to insular versus pelagic animals based on geographic location (McCracken and Forney, 2010). Given current observer coverage levels, only approximately 20 percent of all takes are observed and have known locations. Annually during this 5-year period, one false killer whale was determined to have a non-serious injury within the 140 km extended range and an average of 0.60 insular false killer whales were estimated to have been killed or seriously injured (McCracken and Forney, 2010). This estimate assumes that the probability of taking Hawaiian insular versus pelagic false killer whales is proportional to the estimated density of each population in the area where the takes occurred (NMFS, 2005). There are presently no data available to evaluate this assumption or whether there are other potential differences that might cause the two populations to behave differently with respect to longline gear. Historically, more frequent takes may have occurred when there was much greater overlap between insular false killer whales and longline fisheries.
A high level of current and future risk was found by the BRT for these fisheries. This is based on the large scale and distribution of the troll and handline fisheries, and on anecdotal reports of interactions with cetaceans, although interactions specific to false killer whales are known only for the troll fishery. The troll fishery has by far the greatest participation and effort in fishing days of any fishery within the known range of insular false killer whales, followed by the handline fishery, with the kaka line and shortline fisheries a distant third and fourth. The kaka line and shortline fishing methods have been implicated as a threat based on the similarity of these fishing gears and methods to longline fishing. Potential threats associated with these activities include hooking or entanglement of false killer whales in gear, gear ingestion, direct shooting or injury of false killer whales by fishermen, and competition with fisheries for prey species, such as tuna and billfish.
False killer whales have been documented taking catch or bait during non-longline commercial and recreational fishing operations around the Hawaiian Islands since at least the 1940s (Shallenberger, 1981; Nitta and Henderson, 1993), but little information is available to document the effects of these interactions on false killer whales. Animals may become hooked or entangled, and in some cases, fishermen have reported shooting at false killer whales and other dolphins or using explosives or chemicals to avoid losing catch or bait (Schlais, 1985; Nitta and Henderson, 1993; TEC, 2009). Based on photographs of Hawaiian insular false killer whales, Baird and Gorgone (2005) documented a high rate of dorsal fin disfigurements that were consistent with injuries from unidentified fishing line (3 out of 80 individuals or 3.75 percent, compared to 0–0.85 percent for other studied cetacean populations). Interactions with false killer whales have been reported for troll fisheries (Shallenberger, 1981; Zimmerman, 1983; Nitta and Henderson, 1993), and possibly shortline or kaka line fisheries (anecdotal reports of “blackfish” interactions that may have been false killer whales; cited in Baird, 2010). Some of these recreational fisheries in Hawaii target the same species as commercial fisheries (
Although there are only a few published reports of interactions between false killer whales and troll fisheries, anecdotal evidence indicates that false killer whales have been associated with troll fisheries for decades, often taking catch or bait from lines. It is unknown whether animals get hooked or entangled in troll gear (as they do in longline gear). Fishermen have reported shooting at animals or taking other measures to protect their bait, catch, or gear (Shallenberger, 1981), although it has been illegal to intentionally kill or injure cetaceans since the MMPA was passed in 1972.
Anecdotal reports indicate that interactions between handline fisheries and cetaceans have been common since at least the 1970s. Bottlenose dolphins or rough-toothed dolphins (
Reduced genetic diversity, inbreeding depression, and other Allee effects associated with small population size represent a high risk to current and future Hawaiian insular false killer whales. The current estimated number of breeding adults (46 individuals) is so small that inbreeding depression could have increasingly negative effects on population growth rate and other traits, including social factors (such as reduced efficiency in group foraging and potential loss of knowledge needed to deal with unusual environmental events), may further compromise the ability of Hawaiian insular false killer whales to recover to healthy levels.
The processes that cause small populations to have a greater risk of extinction include genetic and behavioral problems, as well as chance processes like demographic and environmental stochasticity (Shaffer, 1981; Gilpin and Soule, 1986; Goodman, 1987; Simberloff, 1988; Lande, 1993). The decrease in per capita population growth as population size declines is often referred to as the “Allee effect” or “depensation” (see references in Oleson
In addition, social odontocetes (such as false killer whales) may be particularly vulnerable over and beyond the numerical loss of individuals to the population (Wade and Reeves, 2010). Some of these effects may act in a similar fashion to Allee effects or have a more pronounced effect at low population sizes. Survival and reproductive success may depend on such things as social cohesion and social organization, mutual aid in defence against predators, and possible alloparental care such as “babysitting” and communal nursing, sufficient opportunities for transfer of “knowledge” (learned behavior) from one generation to the next, and leadership by older individuals that know where and when to find scarce prey resources and how to avoid high-risk circumstances (
False killer whales share several life history traits with killer whales and belugas that make them prone to problems associated with small population size: A low intrinsic growth rate (a consequence of late maturity and a low birth rate), strong social structure demonstrated through close associations of individuals over long time periods, the potential for high adult survival enabled by the intergenerational cultural transmission of certain types of awareness or specialized behavior, and a low effective population size compared to abundance. This last feature leads to low genetic diversity, which increases the probability that inbreeding depression will occur at a higher level of total abundance than is the case for many other species. Franklin (1980) found that inbreeding depression increases substantially when the number of reproductive animals becomes fewer than 50. The adult population of Hawaiian insular false killer whales is likely approaching the level at which the effects of inbreeding depression become a factor in determining whether the population is able to maintain itself or increase.
Anthropogenic noise, caused from sonar and seismic exploration from sources including military, oceanographic, and fishing sonar, is rated as a medium level of current and future risk to Hawaiian insular false killer whales. Odontocete cetaceans, including false killer whales, have a highly evolved acoustic sensory system. False killer whales rely heavily on their acoustic sensory capabilities for navigation, foraging, and communicating with conspecifics. Potential and measured impacts of anthropogenic noise on cetaceans have been reviewed by a number of authors (Richardson
In recent years there has been increasing concern that active sonar and seismic operations are harmful to beaked whales (Cox
In addition to the qualitative analysis of possible threats to insular false killer whales, the BRT also conducted a quantitative analysis of extinction risk using a Population Viability Analysis (PVA), a model used to quantify extinction risk by integrating and analyzing the various risks a population may face. This PVA was conducted to evaluate the probability of actual and near extinction, with “near extinction” defined as fewer than 20 animals within 75 years, or three false killer whale generations. The PVA took into account measured, estimated, and inferred information on basic life history, population size and trends, as well as varying impacts of catastrophes, environmental stochasticity, and Allee effects. A variety of alternative scenarios were evaluated, and most models indicated a probability of greater than 50 percent likelihood of the DPS declining to fewer than 20 individuals within 75 years. Even though the evaluation of individual threats to the insular population was limited to 60 years duration (the approximate lifespan of a false killer whale), the PVA results modeled probability of reaching near extinction by 50 years (2 generations), 75 years (3 generations), and 125 years (5 generations). Although 60 years wasn't specifically modeled, the results from reaching near extinction by 50 years still showed a high risk of extinction for Hawaiian insular false killer whales. The PVA results are described in greater detail in Appendix B of the status review report (Oleson
Given the results of the PVA analysis and the possible threats to the insular population, the BRT agreed by consensus that Hawaiian insular false killer whales are at a high risk of extinction due to either small-scale incremental impacts over time (
After considering all elements in the status review report and, in particular, the PVA and the five ESA section 4(a)(1) factors, we have determined that the Hawaiian insular false killer whale DPS is in danger of extinction throughout all of its range. Overall, most PVA models indicated a probability of greater than 50 percent likelihood of the DPS declining to fewer than 20 individuals within 75 years, which would result in functional extinction beyond the point where recovery is possible. The risk table provided in the status review report identifies small population size, and hooking, entanglement, or intentional harm by fishermen as the two threats that pose the most significant risk to Hawaiian insular false killer whales, while a number of other threats potentially pose a medium and high risk to this population. The decline in abundance of Hawaiian insular false killer whales likely resulted from a number of factors acting synergistically. This description of risk and the level of concern for Hawaiian insular false killer whales are similar to those described for other species of social odontocetes listed as endangered under the ESA (
Section 4(b)(1)(A) of the ESA requires consideration of efforts being made to protect a species that has been petitioned for listing. Accordingly, we assessed conservation measures being taken to protect the Hawaiian insular false killer whale DPS to determine whether they ameliorate this species' extinction risk (50 CFR 424.11(f)). In judging the efficacy of conservation efforts, identified in conservation agreements, conservation plans, management plans, or similar documents, that have yet to be implemented or to show effectiveness, the agency considers the following: the substantive, protective, and conservation elements of such efforts; the degree of certainty that such efforts will reliably be implemented; the degree of certainty that such efforts will be effective in furthering the conservation of the species; and the presence of monitoring provisions that track the effectiveness of recovery efforts, and that inform iterative refinements to management as information is accrued (Policy for Evaluating Conservation Efforts (PECE); 68 FR 15100).
The conservation or protective efforts that met the aforementioned criteria and are currently in place include the following: (1) Take prohibitions under the MMPA; (2) authorization and control of incidental take under the MMPA; (3) protection under other statutory authorities (i.e., the Clean Water Act, MARPOL); (4) the longline prohibited area; (5) Watchable Wildlife Viewing Guidelines; and (6) active research programs. The conservation or protective efforts that also met the aforementioned criteria but are not yet in place include the following: (7) The draft False Killer Whale Take Reduction Plan; and (8) possible expansion of the Hawaiian Islands Humpback Whale National Marine Sanctuary. Each of these efforts is further described below.
Various sections of the MMPA provide for protection of false killer whales. A goal of the MMPA is to maintain marine mammal species or stocks at or above their optimum sustainable population level. The MMPA established a moratorium on the taking of marine mammals by any person or vessel subject to U.S. jurisdiction. It defines “take” to mean “to hunt, harass, capture, or kill” any marine mammal or attempt to do so. Exceptions to the moratorium can be made through permitting actions for take incidental to commercial fishing and other non-fishing activities; for scientific research; and for public display at licensed institutions such as aquaria and science centers.
In 1981, Congress amended the MMPA to provide for incidental take authorizations for maritime activities, provided NMFS found the takings would be of small numbers and have no more than a “negligible impact” on those marine mammal species not listed as depleted under the MMPA (
The MMPA has various requirements related to take of marine mammals incidental to commercial fisheries. First, section 118 requires NMFS to place all U.S. commercial fisheries into one of three categories in the LOF based on the level of incidental serious injury and mortality of marine mammals occurring in each fishery. The classification of a fishery on the LOF determines whether participants in that fishery may be required to comply with certain other provisions of the MMPA. Owners of vessels or gear engaging in a Category I or II fishery are required to register with NMFS and obtain a marine mammal authorization under the Marine Mammal Authorization Program to lawfully take a non-endangered and non-threatened marine mammal incidental to commercial fishing. Participants in Category I or II fisheries are also required to carry an observer onboard if requested, and comply with any applicable take reduction plans. Participants in Category I, II, or III fisheries must report to NMFS all incidental injuries and mortalities of marine mammals that occur during commercial fishing operations.
The Hawaii-based deep-set longline fishery is classified as a Category I (frequent incidental mortality and serious injury) and has 20 percent observer coverage; the Hawaii-based shallow-set longline fishery and the Hawaii shortline fishery are both classified as Category II fisheries (occasional incidental mortality and serious injury) and have 100 percent and 0 percent observer coverage, respectively. The troll and handline fisheries are all classified as Category III fisheries (remote likelihood of/no known incidental mortality and serious injury) and the kaka line fishery is proposed to be listed as Category III; each has 0 percent observer coverage. Compliance with reporting requirements is likely low and reports provide only a minimum estimate of the number of interactions. However, without observer programs for most of the fisheries, self-reporting of incidental take is the only option currently available to document interactions.
The insular population has been designated as the Hawaii insular stock for the purposes of management under the MMPA. As of the draft 2010 SAR (Carretta
Other statutory authorities, such as the Federal Clean Water Act (CWA) and MARPOL (International Convention for the Prevention of Pollution from Ships), offer some protection to Hawaiian insular false killer whales. Federal programs carried out under the CWA help to ensure that water quality is maintained or improved. Section 402 (discharge of pollutants into water bodies) regulates activities that might degrade false killer whale habitat or prey. Although programs carried out under the CWA are well funded and enforcement of this law occurs, albeit limited, it is unlikely that programs are sufficient to fully protect false killer whale habitat or prey. MARPOL was designed to minimize pollution of the seas, including dumping of debris and plastics, oil, and exhaust pollution. All ships flagged under countries that are signatories to MARPOL are subject to its requirements. Although this is an international convention with a large number of signatories, the large expanse of the oceans make enforcement of illegal marine pollution difficult to enforce.
The Main Hawaiian Islands Longline Prohibited Area was implemented in 1992 through Amendment 5 to the Western Pacific Pelagic Fisheries Management Plan to alleviate gear conflicts between Hawaii-based longline fishermen versus handline and troll fishermen, charter boat operators, and recreational fishermen. The prohibited area varies from 25–75 nm offshore seasonally and excludes longline fishing in much of the range of the Hawaiian insular false killer whale for 8 months of the year. Since implementation of the prohibited area, however, decline of the insular DPS has still occurred.
Watchable Wildlife Viewing Guidelines exist for other species of marine mammals in Hawaiian waters, including false killer whales. The recommended distance for observation is 150 ft when on the beaches or on the water and 1,000 ft when operating an aircraft. These viewing guidelines, however, are only recommendations and are not legally enforceable.
Finally, there are a number of active research programs that are currently identifying Hawaiian false killer whale data gaps and improving our understanding of possible risk factors. For example, research priorities include a need for better understanding of movements, stock structure, population genetics, contaminant levels, etc. Valuable data is being collected, however, data collection and analysis can take a considerable amount of time.
The Hawaii pelagic stock of false killer whales was designated as a “strategic stock” in 2000, but is not considered “depleted” under the MMPA. Current levels of human-caused mortality and serious injury (7.3 animals per year) exceed the stocks PBR level (2.5). In 2009 NMFS convened a false killer whale take reduction team to develop a Take Reduction Plan pursuant to section 118 of the MMPA. The take reduction team submitted its consensus recommendations (draft Take Reduction Plan, or Plan) to NMFS on July 19, 2010. NMFS is currently evaluating the Plan. NMFS will then issue a proposed rule and implementing regulations based on the team's recommendations, gather public comments, and publish a final rule and implementing regulations in the
The immediate goal of the Plan is to reduce, within 6 months of its implementation, incidental mortality and serious injury occurring within the U.S. EEZ surrounding the Hawaiian Islands of the Hawaii pelagic stock of false killer whales in the Hawaii-based longline fisheries to less than the stock's PBR level of 2.5 false killer whales per year. The long-term goal of the Plan is to reduce, within 5 years of its implementation, the incidental mortality and serious injury of the Hawaii pelagic, Hawaii insular, and Palmyra Atoll stocks of false killer whales to insignificant levels
Although there are other U.S. fisheries that may have incidental mortality and serious injury of false killer whales, such as commercial and recreational trolling and other hook-and-line fisheries, the Plan does not include recommendations for reducing bycatch in these other fisheries. Instead, the Plan focuses on the fisheries that are known to pose significant risk to the region's stocks of false killer whales.
The Hawaii insular stock, which is being proposed as the insular DPS, is known to interact or geographically (partially) overlap with the Hawaii-based longline fisheries. The draft Take Reduction Plan contains a recommendation for the year-round closure of a portion of the Longline Fishing Prohibited Area that lies to the north of the main Hawaiian Islands and is currently open to longline fishing for four months of the year. This closure of the northern Prohibited Area, if implemented, would exclude longline fishing from most of the geographic range of the Hawaii insular stock as it is defined in the draft 2010 SAR (Carretta
With respect to the State of Hawaii, the Hawaiian Islands Humpback Whale National Marine Sanctuary is currently undergoing a multi-year management plan review to assess the Sanctuary's programs and effectiveness. The plan was last revised in 2002 and the Sanctuary is required by law to periodically update it. The Sanctuary, formed by Congress in 1992, is also proposing to “expand its scope and direction to protect and conserve other living marine resources besides humpback whales.” Currently, only humpback whales (
We support all conservation efforts currently in effect and those that are planned for the near future, as mentioned above. However, these efforts lack the certainty of implementation and effectiveness so as to remove or reduce threats specifically to Hawaiian insular false killer whales. Specifically, the MMPA, CWA, and MARPOL are all certain and effective regulatory measures, but they do not cover indirect or cumulative threats, such as non-point source pollution, and enforcement capacity is extremely limited in such a vast EEZ around the main Hawaiian Islands. The longline prohibited area has also been effective by reducing interactions with the insular DPS since 1992, yet interactions have still been documented and the total population size of the insular DPS has declined since then. The Watchable Wildlife Viewing Guidelines are only recommendations and thus aren't legally enforceable. The active research programs have gathered valuable data, but many data gaps still remain and research is costly and could take decades. The draft Take Reduction Plan has not yet been implemented, although it will likely be beneficial to the insular DPS. It, however, will not address indirect or cumulative effects. Finally, the possible expansion of the Hawaiian Islands Humpback Whale National Marine Sanctuary is not definite. It is unknown whether false killer whales will be added as a species under protection, nor is it certain that it will be able to address indirect or cumulative threats. Therefore, we have determined that these conservation efforts are not comprehensive in addressing the many other issues now confronting insular false killer whales (
Section 4(b)(1) of the ESA requires that the listing determination be based solely on the best scientific and commercial data available, after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any state or foreign nation to protect and conserve the species. We have reviewed the petition, the report of the BRT (Oleson
Based on this review, we agree with the BRT's assessment and conclude that the Hawaiian insular false killer whale meets the discreteness and significance criteria for a DPS (Oleson
Proposed conservation efforts, including those to protect the pelagic population of Hawaiian false killer whales as described in the previous section, may also benefit the insular population. Taken together, however, we have determined that these conservation efforts are not holistic or comprehensive in addressing the many other issues now confronting insular false killer whales and thus will not alter the extinction risk of the species.
Based on the best scientific and commercial information available, including the status review report, we conclude that the Hawaiian insular false killer whale DPS is presently in danger of extinction throughout all of its range because of: (1) The present or threatened destruction, modification, or curtailment of its habitat or range (reduced total prey biomass; competition with commercial fisheries; competition with recreational fisheries; reduced prey size; and accumulation of natural or anthropogenic contaminants); (2) disease or predation (exposure to environmental contaminants or environmental changes; and increases in
In sum, future declines in insular population abundance may occur as a result of multiple threats, particularly those of small population size, and hooking, entanglement, or intentional harm by fishermen. Current trends and projections in abundance indicate that the Hawaiian insular false killer whale DPS is in danger of extinction throughout all of its range. Therefore, we propose to list the Hawaiian insular false killer whale DPS as endangered.
Conservation measures provided for species listed as endangered or threatened under the ESA include recovery actions (16 U.S.C. 1536(f)), Federal agency consultation requirements (16 U.S.C. 1536), critical habitat designations, and prohibitions on taking (16 U.S.C. 1538). Recognition of the species' plight through listing promotes conservation actions by Federal and state agencies, foreign entities, private groups, and individuals. Should the proposed listing be made final, a recovery plan may be developed, unless such plan would not promote the conservation of the species.
Section 7(a)(2) of the ESA and NMFS/FWS regulations require Federal agencies to confer with us on actions likely to jeopardize the continued existence of species proposed for listing, or that result in the destruction or adverse modification of proposed critical habitat. If a proposed species is ultimately listed, Federal agencies must consult on any action they authorize, fund, or carry out if those actions may affect the listed species or its critical habitat. Examples of Federal actions that may affect the Hawaiian insular false killer whale DPS include, but are not limited to: Alternative energy projects, discharge of pollution from point sources, non-point source pollution, contaminated waste and plastic disposal, dredging, pile-driving, water quality standards, vessel traffic, aquaculture facilities, military activities, and fisheries management practices.
Critical habitat is defined in section 3 of the ESA as: “(i) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 1533 of this title, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of 1533 of this title, upon a determination by the Secretary that such areas are essential for the conservation of the species” (16 U.S.C. 1532(5)(A)). “Conservation” means the use of all methods and procedures needed to bring the species to the point at which listing under the ESA is no longer necessary (16 U.S.C. 1532(3)). Section 4(a)(3)(A) of the ESA requires that, to the maximum extent prudent and determinable, critical habitat be designated concurrently with the final listing of a species (16 U.S.C. 1533(a)(3)(A)(i)). Designations of critical habitat must be based on the best scientific data available and must take into consideration the economic, national security, and other relevant impacts of specifying any particular area as critical habitat.
Once critical habitat is designated, section 7 of the ESA requires Federal agencies to ensure that they do not fund, authorize, or carry out any actions that are likely to destroy or adversely modify that habitat. This requirement is in addition to the section 7 requirement that Federal agencies ensure that their actions do not jeopardize the continued existence of listed species.
At this time, critical habitat is not determinable for the Hawaiian insular false killer whale DPS. We are currently compiling information to prepare a critical habitat proposal for the Hawaiian insular false killer whale DPS in a separate rulemaking. Therefore, we seek public input and information to assist in gathering and analyzing the best available scientific data to support a critical habitat designation. We will continue to meet with co-managers and other stakeholders to review this information and the overall designation process. We will then initiate rulemaking with the publication of a proposed designation of critical habitat in the
Joint NMFS/FWS regulations for listing endangered and threatened species and designating critical habitat at 50 CFR 424.12(2)(b) state that the agency “shall consider those physical and biological features that are essential to the conservation of a given species and that may require special management considerations or protection.” Pursuant to the regulations, such requirements include, but are not limited to the following: (1) Space for individual and population growth, and for normal behavior; (2) food, water, air, light, minerals, or other nutritional or physiological requirements; (3) cover or shelter; (4) sites for breeding, reproduction, rearing of offspring, germination, or seed dispersal; and generally (5) habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species. The regulations also state that the agency shall focus on the principal biological or physical essential features within the specific areas considered for designation. These essential features may include, but are not limited to: “roost sites, nesting grounds, spawning sites, feeding sites, seasonal wetland or dryland, water quality or quantity, host species or plant pollinator, geological formation, vegetation type, tide, and specific soil types.”
Because we are proposing to list this species as endangered, all of the take prohibitions of section 9(a)(1) of the ESA will apply. These include prohibitions against the import, export, use in foreign commerce, or “take” of the species. “Take” is defined under the ESA as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct.” These prohibitions apply to all persons subject to the jurisdiction of the U.S., including in the U.S. or on the high seas.
The intent of the peer review policy is to ensure that listings are based on the best scientific and commercial data available. In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review establishing minimum peer review standards, a transparent process for public disclosure of peer review planning, and opportunities for public participation. The OMB Bulletin, implemented under
On July 1, 1994, the NMFS and USFWS published a series of policies regarding listings under the ESA, including a policy for peer review of scientific data (59 FR 34270). The intent of the peer review policy is to ensure that listings are based on the best scientific and commercial data available. Prior to a final listing, NMFS will solicit the expert opinions of three qualified specialists selected from the academic and scientific community, Federal and state agencies, and the private sector on listing recommendations to ensure the best biological and commercial information is being used in the decisionmaking process, as well as to ensure that reviews by recognized experts are incorporated into the review process of rulemakings developed in accordance with the requirements of the ESA.
The intent of identifying those activities that would constitute a violation of section 9 of the ESA is to increase public awareness of the effect of this listing on proposed and ongoing activities within the species' range. We will identify, to the extent known at the time of the final rule, specific activities that will not be considered likely to result in violation of section 9, as well as activities that will be considered likely to result in violation. Activities that we currently believe could result in violation of section 9 prohibitions against “take” of the Hawaiian insular false killer whale DPS include, but are not limited to, the following: (1) Importation, (2) exportation, (3) take, (4) sale, and (5) delivery that directly or indirectly affect endangered species. These prohibitions apply to all individuals, organizations, and agencies subject to U.S. jurisdiction.
To ensure that the final action resulting from this proposal will be as accurate and effective as possible, we solicit comments and suggestions from the public, other governmental agencies, the scientific community, industry, environmental groups, and any other interested parties. Comments are encouraged on this proposal (
We request quantitative evaluations describing the quality and extent of habitats for the Hawaiian insular false killer whale DPS as well as information on areas that may qualify as critical habitat for the proposed DPS. Specific areas that include the physical and biological features essential to the conservation of the DPS, where such features may require special management considerations or protection, should be identified. We also solicit biological and economic information relevant to making a critical habitat designation for the insular DPS. ESA implementing regulations at 50 CFR 424.12(h) specify that critical habitat shall not be designated within foreign countries or in other areas outside of U.S. jurisdiction. Therefore, we request information only on potential areas of critical habitat within the U.S. or waters within U.S. jurisdiction.
Section 4(b)(2) of the ESA requires the Secretary to consider the “economic impact, impact on national security, and any other relevant impact,” of designating a particular area as critical habitat. For this process, section 4(b)(2) authorizes the Secretary to exclude from a critical habitat designation those particular areas where the Secretary finds that the benefits of exclusion outweigh the benefits of designation, unless excluding that area will result in extinction of the species. We seek information regarding the conservation benefits of designating areas within the main Hawaiian Islands as critical habitat. We also seek information on the economic and other benefits of excluding areas from the critical habitat designation, and the economic and other benefits of including an area as part of the critical habitat designation. In keeping with the guidance provided by the OMB (2000; 2003), we seek information that would allow us to monetize these effects to the extent possible, as well as information on qualitative impacts to economic values. We also seek information on impacts to national security and any other relevant impacts of designating critical habitat in these areas.
Data reviewed may include, but are not limited to: (1) Scientific or commercial publications; (2) administrative reports, maps or other graphic materials; (3) information received from experts; and (4) comments from interested parties. Comments and data particularly are sought concerning: (1) Maps and specific information describing the amount, distribution, and use type (e.g., foraging or migration) of the Hawaiian insular false killer whale DPS, as well as any additional information on occupied and unoccupied habitat areas; (2) the reasons why any habitat should or should not be determined to be critical habitat as provided by sections 3(5)(A) and 4(b)(2) of the ESA; (3) information regarding the benefits of designating particular areas as critical habitat; (4) current or planned activities in the areas that might be proposed for designation and their possible impacts; (5) any foreseeable economic or other potential impacts resulting from designation, and in particular, any impacts on small entities; (6) whether specific unoccupied areas may be essential to provide additional habitat areas for the conservation of this DPS; and (7) potential peer reviewers for a proposed critical habitat designation, including persons with biological and economic expertise relevant to the species, region, and designation of critical habitat. We seek information regarding critical habitat for the Hawaiian insular false killer whale DPS as soon as possible, but no later than February 15, 2011.
50 CFR 424.16(c)(3) requires the Secretary to promptly hold at least one public hearing if any person requests one within 45 days of publication of a proposed rule to list a species. Such hearings provide the opportunity for interested individuals and parties to give opinions, exchange information, and engage in a constructive dialogue
A complete list of all references cited herein is available upon request (see
The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the information that may be considered when assessing species for listing. Based on this limitation of criteria for a listing decision and the opinion in
As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered when assessing the status of a species. Therefore, the economic analysis requirements of the Regulatory Flexibility Act are not applicable to the listing process. In addition, this proposed rule is exempt from review under Executive Order 12866. This proposed rule does not contain a collection-of-information requirement for the purposes of the Paperwork Reduction Act.
In accordance with E.O. 13132, we determined that this proposed rule does not have significant Federalism effects and that a Federalism assessment is not required. In keeping with the intent of the Administration and Congress to provide continuing and meaningful dialogue on issues of mutual state and Federal interest, this proposed rule will be given to the relevant state agencies in each state in which the species is believed to occur, and those states will be invited to comment on this proposal. We have conferred with the state of Hawaii in the course of assessing the status of the Hawaiian insular false killer DPS, and considered, among other things, Federal, state, and local conservation measures. As we proceed, we intend to continue engaging in informal and formal contacts with the state, and other affected local or regional entities, giving careful consideration to all written and oral comments received.
Endangered marine and anadromous species.
For the reasons set out in the preamble, 50 CFR part 224 is proposed to be amended as follows:
1. The authority citation for part 224 continues to read as follows:
16 U.S.C. 1531–1543 and 16 U.S.C. 1361
2. In § 224.101, amend paragraph (b) by adding, “False killer whale (